USA v. Scher

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
GREGORY SCHER,
Defendant.
_____________________________
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CRIM. NO. 15-00614 SOM
ORDER DENYING MOTION TO
DISMISS
ORDER DENYING MOTION TO DISMISS
I. INTRODUCTION.
The Superseding Indictment of March 9, 2016, charges
Defendant Gregory Scher with allegedly fraudulent acts relating
to his application for or receipt of Social Security benefits.
See ECF No. 41. Scher has moved to dismiss the charges, arguing
that they are duplicitous and multiplicitous. This court denies
the motion.
II. FACTUAL BACKGROUND.
There are eight counts in the Superseding Indictment.
Count 1 charges that, on or about October 22, 2012, in
violation of 42 U.S.C. § 408(a)(2), Scher knowingly and	1
willfully made the following false statements and representations
in an application for Social Security Disability Insurance
This subsection makes it a felony to “make[] or	1
cause[] to be made any false statement or representation of a
material fact in any application for any payment or for a
disability determination” under provisions governing Federal Old-
Age, Survivors, and Disability Insurance Benefits. 42 U.S.C.
§§ 401-434. 42 U.S.C. § 408(a)(2).
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benefits: 1) that, from May 2012 to July 2012, he was only
employed by Watts Construction; 2) that, in 2011, he was not
self-employed; 3) that, in 2012, he was not self-employed; and
4) that he did not expect to be self-employed in 2013.
Count 2 charges that, on or about October 25, 2012, in
violation of 42 U.S.C. § 1383a(a)(1), Scher knowingly and	2
willfully made the following false statements and representations
in an application for Supplemental Security Income benefits:
1) that the only vehicle he owned was a 2002 GMC Envoy; 2) that
his only bank accounts were checking and savings accounts with
Bank of Hawaii; 3) that the balances in his Bank of Hawaii
accounts were only $652.00 and $800.02; and 4) that he received
or only expected to receive income in October 2012 of $1,090.00
in unemployment compensation from the State of Hawaii.
Count 3 charges that, on or about March 6, 2013, in
violation of 42 U.S.C. § 1383a(a)(2), Scher knowingly and	3
willfully made the following false statements and representations
This subsection makes it a felony to “knowingly and	2
willfully make[] or cause[] to be made any false statement or
representation of a material fact in any application for any
benefit under th[e] subchapter” concerning Supplemental Security
Income for Aged, Blind, and Disabled. 42 U.S.C. § 1383a(a)(1).
This subsection makes it a felony to “at any time	3
knowingly and willfully make[] or cause[] to be made any false
statement or representation of a material fact for use in
determining rights to any . . . benefit” concerning Supplemental
Security Income for Aged, Blind, and Disabled. 42 U.S.C.
§ 1383a(a)(2).
2
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to the Social Security Administration for its use in determining
his Supplemental Security Income benefits: 1) that, as of October
1, 2012, through March 6, 2013, R.S. was living as a dependent in
his household; 2) that, as of March 6, 2013, the only vehicle he
owned was a 2002 GMC Envoy; 3) that, as of March 6, 2013, he only
had one checking and one savings account with Bank of Hawaii;
4) that the only income received in October 2012 was $1,090.00
from the State of Hawaii for unemployment compensation; and
5) that his last unemployment check was received from the State
of Hawaii on October 19, 2012.
Count 4 charges that, on or about March 6, 2013, in
violation of 18 U.S.C. § 1001(a)(2), Scher knowingly and	4
willfully made a false statement or representation to a Social
Security Administration representative that he had not worked
since July 15, 2012.
Count 5 charges that, in violation of 42 U.S.C.
§ 408(a)(4)(2), from on or about April 11, 2013, through on or	5
This subsection prohibits “in any matter within the	4
jurisdiction of the executive, legislative, or judicial branch of
the Government of the United States, knowingly and willfully--
(2) makes any materially false, fictitious, or fraudulent
statement or representation[.]” 18 U.S.C. § 1001(a)(2).
This subsection makes it a felony to “hav[e] knowledge	5
of the occurrence of any event affecting . . . the initial or
continued right to any payment of any other individual in whose
behalf he has applied for or is receiving such payment” but to
“conceal[] or fail[] to disclose such event with an intent
fraudulently to secure payment either in a greater amount than is
due or when no payment is authorized.” 42 U.S.C. § 408(a)(4)(2).
3
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about April 15, 2014, Scher concealed and failed to disclose that
his minor daughter was not living with him in an effort to
fraudulently obtain Social Security Child’s Insurance benefits.
Count 5 also seeks a sentencing enhancement under 18 U.S.C.
§ 3147(1) because Scher allegedly committed the offense while on	6
pretrial release.
Count 6 charges that, in violation of 42 U.S.C.
§ 408(a)(4)(1), from on or about April 16, 2013, through on or	7
about September 19, 2014, Scher concealed and failed to disclose
that he was working while receiving Social Security Disability
Insurance payments in an effort to fraudulently obtain those
payments. Count 6 also seeks a sentencing enhancement under 18
U.S.C. § 3147(1) because Scher allegedly committed the offense
while on pretrial release.
Count 7 charges that, on or about March 3, 2014,
through on or about September 16, 2014, in violation of 42 U.S.C.
This section states, “A person convicted of an offense	6
committed while released under this chapter shall be sentenced,
in addition to the sentence prescribed for the offense to--
(1) a term of imprisonment of not more than ten years if the
offense is a felony[.]” 18 U.S.C. § 3147(1).
This subsection makes it a felony for any person	7
“having knowledge of the occurrence of any event affecting
(1) his initial or continued right to any payment under this
subchapter” to “conceal[] or fail[] to disclose such event with
an intent fraudulently to secure payment either in a greater
amount than is due or when no payment is authorized.” 42 U.S.C.
§ 408(a)(4)(1).
4
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§ 408(a)(5), Scher applied for and received Social Security	8
Child’s Disability Insurance benefits for his minor child, but
converted those payments for Scher’s own use.
Count 8 charges that, on or about July 20, 2014, in
violation of 42 U.S.C. § 408(a)(3), Scher knowingly and willfully	9
made the following materially false statements and
representations to the Social Security Administration in a Work
Activity Report with respect to Scher’s right to continued Social
Security Disability Insurance benefits: 1) that, as of July 2012
through July 20, 2014, he did not receive any payment or benefit
not disclosed to the Social Security Administration; 2) that,
from September 13, 2013, through February 21, 2014, he was only
employed by Kiewit Infrastructure West Co.; and 3) that cataracts
rendered him legally blind.
This subsection makes it a felony for any person who,	8
“having made application to receive payment under this subchapter
for the use and benefit of another and having received such a
payment, knowingly and willfully converts such a payment, or any
part thereof, to a use other than for the use and benefit of such
other person[.]” 42 U.S.C. § 408(a)(5).
This subsection makes it a felony to “at any time	9
make[] or cause[] to be made any false statement or
representation of a material fact for use in determining rights
to payment under this subchapter” concerning federal old-age,
survivors, and disability insurance benefits. 42 U.S.C.
§ 408(a)(3).
5
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III. ANALYSIS.
A. Standard.
Rule 12(b) of the Federal Rules of Criminal Procedure
allows the consideration at the pretrial stage of any defense
“that the court can determine without a trial on the merits.” A
motion to dismiss is generally “capable of determination” before
trial if it involves questions of law rather than fact. United
States v. Nukida, 8 F.3d 665, 669 (9 Cir. 1993). Although the	th
court may make preliminary findings of fact necessary to decide
legal questions presented by a motion, the court may not “invade
the province of the ultimate finder of fact.” Id. No party in
the present case has asked the court to go beyond the allegations
in the Complaint to make such preliminary findings of fact.
Instead, Scher asks the court to examine the allegations in the
Superseding Indictment to determine whether its counts are
duplicitous or multiplicitous.
B. The Crimes Alleged in Counts 5 and 6 Are Not
Duplicitous.
Scher seeks dismissal of Counts 5 and 6 of the
Superseding Indictment, arguing that each of those counts
contains two distinct crimes and is therefore duplicitous. Scher
contends that each of the two counts contains a substantive
alleged violation as well as a separate offense under 18 U.S.C.
§ 3147, which provides for a higher sentence if the substantive
6
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offense was committed by a person on pretrial release. The court
denies this part of the motion.
“An indictment is duplicitous when it joins two or more
distinct and separate offenses into a single count.” United
States v. Mancuso, 718 F.3d 780, 792 (9 Cir. 2013). The “danger	th
of duplicity is that a jury could find a defendant guilty on a
count without reaching a unanimous verdict on the commission of
an offense.” United States v. Renteria, 557 F.3d 1003, 1008 (9th
Cir. 2009). A duplicitous count violates a defendant’s Sixth
Amendment right to know the charges against him or her, as well
as the defendant’s Fifth Amendment protection against double
jeopardy because of the lack of clarity with respect to the
charges. United States v. Aguilar, 756 F.2d 1418, 1420 n.2 (9th
Cir. 1985).
Count 5 charges Scher with having concealed and failed
to disclose that his minor daughter was no longer living with
him. Count 6 charges Scher with working while obtaining Social
Security Disability Insurance payments. Both counts allege that
these actions were taken in furtherance of fraudulently obtaining
benefits. The counts also seek a sentencing enhancement under 18
U.S.C. § 3147(1) because Scher allegedly committed the offenses
while on pretrial release.
The gist of Scher’s argument appears to be that seeking
an enhanced sentence under 18 U.S.C. § 3147 constitutes a charge
7
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separate from the underlying substantive offense. At the hearing
on this motion, Scher recognized that Ninth Circuit precedent
makes his duplicity argument difficult. In United States v.
Patterson, 820 F.2d 1524, 1526 (9 Cir. 1987), the Ninth Circuit	th
specifically held that 18 U.S.C. § 3147 does not create a
separate offense. Instead, it is “a sentence enhancement statute
which simply mandates an enhanced sentence for someone who
commits an offense while released on bail.” Id. Because § 3147
is not a separate offense and is instead a sentencing enhancement
statute, neither Count 5 nor Count 6 asserts two or more separate
offenses in the same count. Accordingly, Counts 5 and 6 are not
duplicitous.
C. Counts 1 to 8 Are Not Multiplicitous.
Scher next argues that all of the counts in the
Superseding Indictment should be dismissed as multiplicitous
because they all charge the same continuing offense. This court
is not persuaded.
“An indictment is multiplicitous when it charges
multiple counts for a single offense, thereby resulting in two
penalties for one crime and raising double jeopardy concerns.”
United States v. Mancuso, 718 F.3d 780, 791 (9 Cir. 2013);	th
accord United States v. Stewart, 420 F.3d 1007, 1012 (9 Cir.	th
2005). “The appropriate inquiry is whether Congress intended to
prescribe multiple punishments for the same conduct.” United
8
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States v. Nash, 115 F.3d 1431, 1437 (9 Cir. 1997). The test set	th
forth in Blockburger v. United States, 284 U.S. 299, 304 (1932),
governs this determination. Nash, 115 F.3d at 1437. Charges are
not multiplicitous if each requires proof of an element that the
other charges do not require proof of. See Blockburger, 284 U.S.
at 304; United States v. Vargas-Castillo, 329 F.3d 715, 719 (9th
Cir. 2003) (“The test to determine whether an indictment is
multiplicitous is whether each separately violated statutory
provision requires proof of an additional fact which the other
does not.” (quotation marks and citation omitted)). In other
words, “two counts within an indictment are not multiplicitous if
each separately violated statutory provision requires proof of an
additional fact which the other does not.” Mancuso, 718 F.3d at
791 (quotation marks and citation omitted). See also United
States v. Nash, 115 F.3d 1431, 1437 (9 Cir. 1997) (“Thus, if	th
each offense requires proof of a fact that the other does not,
the offenses are not multiplicitous, absent a clear indication of
contrary legislative intent.”).
In the present case, no two counts assert a violation
of the same section or the same subsection of a statute. Each
count has at least one element different from the elements in the
other counts:
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Count Statute Allegedly
Violated
Date Statutory Elements
1 42 U.S.C. § 408(a)(2) 10/22/12 1) make or cause to be made;
2) any false statement or
representation of a material fact;
3) in any application for any
payment or for a disability
determination under 42 U.S.C.
§§ 401-434.
2 42 U.S.C. § 1383a(a)(1) 10/25/12 1) knowingly and willfully;
2) make or cause to be made;
3) any false statement or
representation of a material fact;
4) in any application for any
benefit under the subchapter
concerning Supplemental Security
Income for Aged, Blind, and
Disabled, 42 U.S.C. §§ 1381-1385.
3 42 U.S.C. § 1383a(a)(2) 3/6/13 1) knowingly and willfully;
2) make or cause to be made;
3) any false statement or
representation of a material fact;
4) for use in determining rights to
any benefit concerning Supplemental
Security Income for Aged, Blind,
and Disabled.
4 18 U.S.C. § 1001(a)(2) 3/6/13 1) knowingly and willfully;
2) makes any materially false,
fictitious, or fraudulent statement
or representation;
3) in any matter within the
jurisdiction of the executive,
legislative, or judicial branch of
the Government of the United States
10
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5 42 U.S.C.
§ 408(a)(4)(2)
4/11/13-
4/15/14
1) have knowledge of the occurrence
of any event;
2) affecting the initial or
continued right to any payment
under 42 U.S.C. §§ 401-434;
3) to any other individual on whose
behalf he or she has applied for or
is receiving such payment;
4) but conceals or fails to
disclose such event;
5) with intent to fraudulently
secure payment either in a greater
amount than is due or when no
payment is authorized.
6 42 U.S.C. §
408(a)(4)(1)
4/16/13-
9/19/14
1) have knowledge of the occurrence
of any event;
2) affecting the initial or
continued right to any payment
under 42 U.S.C. §§ 401-434;
3) to himself or herself;
4) but conceals or fails to
disclose such event;
5) with intent to fraudulently
secure payment either in a greater
amount than is due or when no
payment is authorized.
7 42 U.S.C. § 408(a)(5) 3/3/14-
9/16/14
1) submitting application to
receive payment under 42 U.S.C.
§§ 401-434;
2) for the use and benefit of
another;
3) knowingly and willfully
converting the payment received, or
any part thereof, to a use other
than for the use and benefit of
such other person.
8 42 U.S.C. § 408(a)(3) 7/20/14 1) make or cause to be made
2) any false statement or
representation of a material fact;
3) for use in determining rights to
payment under 42 U.S.C. §§ 401-434.
11
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As detailed in the table above, each count has at least one
element different from the other counts. Moreover, there is no
indication that Congress intended to prohibit a defendant from
being charged with multiple counts based on violations of these
different subsections.
For example, § 408(a)(2), the statute at issue in
Count 1, prohibits the making of a false statement or the
representation of a material fact in connection with an
application for any payment or disability determination under 42
U.S.C. §§ 401 to 434. Although § 408(a)(3), the statute at issue
in Count 8, similarly prohibits the making of a false statement
or the representation of a material fact for use in determining
rights to payment under 42 U.S.C. §§ 401 to 434, it is clear that
§ 408(a)(3) differs from § 408(a)(2). Section 408(a)(3) does not
require the statement to have been made in an application for any
payment or for a disability determination under 42 U.S.C. §§ 401
to 434. The Superseding Indictment follows this distinction in
charging Scher in Count 1 with making false statements in an
application for Social Security Disability Insurance benefits and
charging him in Count 8 with making false statements in a Work
Activity Report.
Ignoring the different elements in each of the charged
counts, Scher argues that the counts are multiplicitous because
they involved a single course of conduct. But this case involves
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discrete acts, not a single course of conduct. It differs from
cases like United States v. Doty, 2016 WL 4745192, *7 (D. Nev.
March 1, 2016), in which the court determined that being charged
in two counts for the same statutory violation of possessing the
same firearm on two different dates was multiplicitous. This
case is more akin to cases like Vargas-Castillo, 329 F.3d at 719,
in which the Ninth Circuit held that an indictment charging a
defendant with a violation of 21 U.S.C. § 841(a)(1) for
importation and possession of marijuana with intent to distribute
and a separate violation of the same statute for importation and
possession of cocaine with intent to distribute was not
multiplicitous. In Vargas-Castillo, the Ninth Circuit reasoned
that, to convict the defendant, the Government had to prove in
one count that marijuana was possessed and in the other count
that cocaine was possessed, and that these different proof
requirements defeated the contention that the charges were
multiplicitous. Id.
This case is very much like United States v. Nash, 115
F.3d 1431, 1437 (9 Cir. 1997), which involved an argument that	th
bank fraud and false statement counts were multiplicitous. Nash
had been charged with bank fraud in violation of 18 U.S.C. § 1344
and with making false statements to a federally insured lending
institution in violation of 18 U.S.C. § 1014. The Ninth Circuit
ruled that § 1344 and § 1014 satisfied the Blockburger test.
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Section 1344 requires proof that the defendant “knowingly engaged
in a scheme to defraud a federally insured institution or to
obtain money under the custody or control of such an institution
by means of material false statements or representations.” Nash,
115 F.3d at 1437–38. On the other hand, § 1014 requires proof
that the defendant “made a knowing, false statement to the bank
for the purpose of influencing its action on a loan.” Id. at
1438. Because each statute had an element that the other did
not, and because there was no evidence that Congress intended to
prevent the charging of defendants with both crimes, the Ninth
Circuit held that the indictment was not multiplicitous. Id.
Similarly, in a case involving 18 U.S.C. § 1001, the
statute at issue in Count 4, the Ninth Circuit stated that,
although a defendant may be convicted of making false statements
only once when identical false statements are made in response to
identical questions, “each nonidentical false statement made or
document prepared or used may be charged as a separate violation
of section 1001.” United States v. Segall, 833 F.2d 144, 146 (9th
Cir. 1987). The essential holding in Seagull is that counts
based on differing statements and/or representations are not
mulitplicitous. In the present case, Counts 1 through 8 involve
different statements; nothing in the Superseding Indictment
suggests that the statements were made in response to identical
questions.
14
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The court recognizes, as Scher argued at the hearing,
that some of the alleged statements involved the same
misrepresentation in different contexts. For example, Count 2 of
the Superseding Indictment charges Scher with having allegedly
stated on or about October 25, 2012, in connection with an
application for Supplemental Security Income benefits, that the
only vehicle he owned was a 2002 GMC Envoy, that he only had bank
accounts with Bank of Hawaii, and that, in October 2012, he
received or expected to receive $1090 in unemployment
compensation. Count 3 of the Superseding Indictment charges
Scher with having made the same alleged misrepresentations on or
about March 6, 2013, “for use by the Social Security
Administration in determining rights to Supplemental Security
Income benefit payments.” But the court cannot determine based
solely on the allegations in the Superseding Indictment that the
representations were made in response to identical questions. At
a minimum, the alleged misrepresentations pertained to different
dates. Given these circumstances, the court does not dismiss
either Count 2 or Count 3.
At the hearing on the present motion, Scher conceded
that he was relying only on the allegations in the Superseding
Indictment in seeking dismissal. Those allegations do not
indicate that any alleged misrepresentation was identical to
another alleged misrepresentation made in response to a question
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identical to the question that elicited the first
misrepresentation. At present, this court cannot conclude that
counts are multiplicitous. If in the future Scher can show that
he is being charged in multiple counts with having made the same
misrepresentation(s) in response to identical questions, Scher
may renew his motion.
IV. CONCLUSION.
The motion to dismiss the indictment is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 28, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States of American v. Scher, Crim. No. 15-00614 SOM; Order Denying
Motion to Dismiss
16
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